According to property law, owning land involves the ownership of the soil under the surface and the ownership of the air above the surface. While ownership of land under the earth’s surface potentially goes all the way to the core of the planet, ownership of air above the earth’s surface does not extend indefinitely into space. As a result, these laws do not designate unused airspace public; they restrict the owner’s use of it. The ownership rights in real property include enhancing the property, such as by constructing structures.
When one possesses real property, one gets various rights, including the following:
Possession of the right to use and peaceful pleasure
Allowing others to utilize (licenses and leases)
The right to privacy and the right to be excluded
Right to dispose of or transfer property to another person via sale, gift, or inheritance
Possession of property to secure a loan through a mortgage
The ownership rights in real estate include the right to utilize the land’s surface, referred to as “surface rights.” Additionally, one has the right to exploit resources under the surface, such as oil, gas, and minerals, and these refer to as “subsurface rights.” Finally, the ownership rights include “water rights” or “riparian rights,” which refer to the rights to any water on the land and the right to make fair use of flowing water that flows through or beside the property.
Additionally, one has a right to utilize the space above the ground, including having the air immediately above the property unobstructed by neighboring properties’ structures. Therefore, it is critical to ascertain if any of these rights, such as air rights, have been sold or pledged when purchasing real estate. In addition, in most jurisdictions, a property owner’s right to improve local restrictions on the real property’s size, configuration, and use (“zoning laws”). Moreover, ordinances govern the construction and the minimum standards that buildings must meet (“building codes”). These rights enable the property owner not wholly developed under the zoning code to sell the land’s unused development potential to adjacent property owners who want to erect structures more prominent than the zoning law permits.
Defining Boundaries in the Air
When it comes to the air above the surface, a landowner possesses as much of it as she/he may legitimately utilize about the surface. The land would be unusable if one did not possess a portion of the airspace above the surface; virtually any land use necessitates using some portion of the airspace above the surface. However, since one has the right to reasonably use the land, one does not unreasonably interfere with other’s rights to do the same. Thus, one has the right to reasonably use both the surface of the land and the air above it unless one does so in a way that interferes with someone else’s right to use their land. According to the common law concept, if one has been using just 20 feet of air space for a long time, one may subsequently elect to construct a 200-foot structure if it would not be a nuisance. However, even if the highest limit of an owner’s airspace is not precisely defined, it is evident that it does not extend into navigable airspace. The higher airspace belongs to the general public and is accessible by aircraft.
Using and Safeguarding the Airspace
Ownership of airspace is analogous to that of land ownership. It may be used and reasonably enjoyed by the owner. For example, zoning regulations and other laws often restrict the height of buildings. On the other hand, such laws do not explicitly proclaim that unoccupied airspace belongs to the public; instead, they restrict the owner’s utilization of the area. As a result, landowners may have more airspace than they are legally permitted to utilize.
Not only is the landowner permitted to utilize and enjoy the airspace, but she/he is also permitted to transfer ownership of the airspace to others. For example, a condominium may split the available airspace among the unit owners in a particular building. An owner may also provide an easement to a third party, such as a utility company, to allow them to utilize a portion of the airspace. If the aircraft does not fly over a person’s surface but rather passes close by, the airplane’s interference with the surface due to noise and light would not consider a trespass, but it might be considered a nuisance in some instances. Furthermore, if the government is flying the aircraft, the landowner’s sole recourse is to seek fair compensation for the government’s obtaining an easement across her airspace.
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